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The first of an expected barrage of legal actions by environmental groups regarding the new pesticide application permits was filed in Massachusetts. The Public Employees for Environmental Responsibility (PEER) asked EPA to investigate whether the Massachusetts Dept. of Public Health (MDPH) violated the Clean Water Act (CWA) when it declared a pest emergency for mosquitos and aerially sprayed more than 400,000 acres in the southeastern part of the state. PEER is charging the state knew well in advance it would have to spray to control Eastern Equine Encephalitis (EEE) but declared an emergency situation to avoid the requirement for a permit. EEE is a rare but serious viral disease spread by mosquitoes that can affect people and horses.

The new National Pollution Discharge Elimination System (NPDES) permit is authorized under the CWA. A 2009 court decision required EPA, for the first time ever, to develop permits for pesticide applications over, to, or near waters of the United States, including applications for mosquito control. EPA issued its final general permit in October of last year. The permit includes a provision for emergency situations.

The MDPH reported on July 11 that EEE had been detected in mosquitoes in Massachusetts for the first time in 2012. Two of the four positive samples were in a kind of mosquito which feeds on mammals, a point of particular concern to health officials. An agency spokesman said the decision on whether to aerially treat was made in a matter of days based on EEE risk and the plan was executed shortly thereafter.

The NCC and other agricultural groups have opposed these permits on the grounds that pesticides are sufficiently regulated under the Federal Insecticide, Fungicide & Rodenticide Act making the NPDES permits redundant and burdensome while providing no additional environmental benefit. The CWA also allows for citizen suits such as this one.

H.R. 872, which would repeal these permits, was passed in the House in March and by the Senate Agriculture, Nutrition, and Forestry Committee. However, Sens. Boxer (D-Calif.) and Cardin (D-Md.) have prevented any further Senate action on the bill.